CHAPTER X.

THE JUDICIAL POWER.

89. The necessity for the existence of a judicial department of the United

States.

90. The constitutional provisions.

91. The terms of the grant of federal jurisdiction.

92. The exclusive jurisdiction.

93. The original jurisdiction.

94. Removal of causes from state courts to the courts of the United States.

95. The appellate and supervisory jurisdiction.

96. The requisites of a judicial case.

97. Courts martial.

98. Impeachment.

99. The judicial construction of the Constitution.

100. The XI Amendment.

101. Section 2 of Article III of the Constitution, and the IV Amendment.

102. The V Amendment.

103. The VI Amendment.

104. The VII Amendment.

105. The exemption of federal process from state control.

106. Limitation of federal process by the reserved rights of the states. 107. The limitations of state jurisdiction and process by the federal

supremacy.

108. The rule as to conflict of jurisdiction.

109. The XIV Amendment as affecting state jurisdiction.

110. The effect of Section 1 of Article IV of the Constitution.

89. It is, under any form of government, essential to the enforcement of the laws with a due regard to the maintenance of the liberties of the citizens, that a judicial department, independent by reason of the security of the tenure of office and adequacy of compensation of the judges, should be charged with the duty, and entrusted with the power, of construing the laws, and of finally determining issues of fact and of law in prosecutions for crime and in litigations as to

individual rights. Having regard to the relation between the United States and the states, and bearing in mind that the United States cannot impose duties upon officers of the states, and compel the performance by those officers of the duties so imposed,' it is, in an especial degree, essential that the United States should have the power of establishing courts of civil and criminal jurisdiction for the punishment of offenses against the laws of the United States, and for the protection and enforcement of rights created by the Constitution, laws, and treaties of the United States. It is also necessary to the enforcement of the declared supremacy of the Constitution, laws, and treaties of the United States, that a court constituted by the United States with jurisdiction co-extensive with the territory subject to the Constitution, should be, so far as regards all subjects of judicial cognizance, the final arbiter by whom the construction of the Constitution of the United States is to be authoritatively determined,2 for otherwise the Constitution might have one meaning in one state, and a different meaning in another state, and it might be construed in one way in one court and in another way in another court, and if the legislative, executive, and judicial departments of the several states were at liberty to conclusively determine for themselves the construction of that instrument, and the nature and the extent of the restraints upon freedom of state action imposed by it, those restraints would bind any one state only in so far as that state might choose to be bound at any particular time, and the inevitable result would be,

3

1 Prigg v. Pennsylvania, 16 Pet. 539; Kentucky v. Dennison, 24 How. 66. 2 Cohens v. Virginia, 6 Wheat. 264; Bank of Hamilton v. Dudley's Lessee, 2 Pet. 429, 524; Dodge v. Woolsey, 18 How. 331, 347; Martin v. Hunter's Lessee, 1 Wheat. 304.

3 Marbury v. Madison, 1 Cr. 137; Van Horne v. Dorrance, 2 Dall. 304; The Mayor v. Cooper, 6 Wall. 253; Norton v. Shelby County, 118 U. S. 443.

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as Marshall, C. J., said in Cohens v. Virginia,1 to prostrate the federal " government and its laws at the feet of every state in the Union."

90. In recognition of these principles, and in order to give practical effect to them, the Constitution has created a judicial department of the government of the United States. Section 1 of article III declares, that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." Section 2 declares that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, or other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens, or subjects. In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make."

16 Wheat. 385.

91. The Constitution has, therefore, conferred upon the courts of the United States jurisdiction in two classes of causes, depending in the one class on the character of the cause, and in the other class on the character of the parties.1

1 Cohens v. Virginia, 6 Wheat. 264, 378; Martin v. Hunter's Lessee, 1 Wheat. 304, 331, 333; The Moses Taylor, 4 Wall. 411, 429. Jay, C. J., in his judgment in Chisholm v. Georgia, 2 Dall. 475, after referring to the declaration in the preamble to the Constitution, that that instrument was ordained, inter alia, "to establish justice," added, "it may be asked, what is the precise sense and latitude in which the words 'to establish justice,' as here used, are to be understood? The answer to this question will result from the provisions made in the Constitution on this head. They are specified in the 2d section of the 3d article, where it is ordained, that the judicial power of the United States shall extend to ten descriptions of cases, viz., 1st: to all cases arising under this Constitution; because the meaning, construction, and operation of a compact ought always to be ascertained by all the parties, or by authority derived only from one of them: 2d: to all cases arising under the laws of the United States; because as such laws, constitutionally made, are obligatory on each state, the measure of obligation and obedience ought not to be decided and fixed by the party from whom they are due, but by a tribunal deriving authority from both the parties: 3d: to all cases arising under treaties made by their authority; because, as treaties are compacts made by, and obligatory on, the whole nation, their operation ought not to be affected or regulated by the local laws or courts of a part of the nation: 4th: to all cases affecting Ambassadors, or other public Ministers and Consuls; because, as these are officers of foreign nations, whom this nation is bound to protect and treat according to the laws of nations, cases affecting them ought only to be cognizable by national authority: 5th to all cases of Admiralty and Maritime jurisdiction; because, as the seas are the joint property of nations, whose right and privileges relative thereto, are regulated by the law of nations and treaties, such cases necessarily belong to national jurisdiction: 6th: to controversies to which the United States shall be a party; because in cases in which the whole people are interested, it would not be equal or wise to let any one state decide and measure out the justice due to others: 7th: to controversies between two or more states; because domestic tranquillity requires that the contention of states should be peaceably terminated by a common judicatory; and, because, in a free country justice ought not to depend on the will of either of the litigants: 8th: to controversies between a state and citizens of another state; because in case a state (that is all the citizens of it) has demands against some citizens of another state, it is better that they should prosecute their demands in a national court than in a court of the state to which those citizens belong; the danger of irritation and criminations, arising from apprehensions and suspicions, of partiality, being thereby obviated. Because, in cases where some citizens of one state have demands against all the citizens of another state, the cause of liberty and the rights of men forbid that the latter should be the sole judges of the justice due to the latter; and true republican

"Cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority" include all subject-matters of litigation, civil or criminal, whose determination requires the application or construction of the Constitution, laws, or treaties of the United States.1 "Cases affecting ambassadors, other public ministers, and consuls" are cases to which such officers are parties, or so far privies, that the determination thereof will conclude their rights." "Cases of admiralty and maritime jurisdiction" comprehend litigovernment requires that free and equal citizens should have free, fair, and equal justice: 9th: to controversies between citizens of the same state, claiming lands under grants of different states; because, as the rights of the two states to grant the land are drawn into question, neither of the two states ought to decide the controversy: 10th: to controversies between a state or the citizens thereof, and foreign states, citizens, or subjects; because, as every nation is responsible for the conduct of its citizens toward other nations, all questions touching the justice due to foreign nations or people, ought to be ascertained by, and depend on, national authority."

1 Waite, C. J., said in Starin v. New York, 115 U. S. 257, "the character of a case is determined by the questions involved. If from the questions it appears that some title, right, privilege, or immunity on which the recovery depends will be defeated by one construction of the Constitution, or of a law of the United States, or sustained by the opposite construction, the case will be one arising under the Constitution or laws of the United States, within the meaning of that term . otherwise not." In Tennessee v. Davis, 100 U. S. 264, Strong, J., said, "a case arising under the Constitution and laws of the United States may as well arise in a criminal prosecution as in a civil suit. . . . It is not merely one where a party comes into court to demand something conferred upon him by the Constitution or by a law or treaty. A case consists of the right of one party as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States, whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whenever they constitute the right or privilege, or claim, or protection, or defense of the party, in whole or in part, by whom they are asserted." See also Cohens v. Virginia, 6 Wheat. 264, 379; Osborn v. Bank of the U. S., 9 id. 737, 824; The Mayor v. Cooper, 6 Wall. 247, 252; Gold W. & W. Co. v. Keyes, 96 U. S. 199, 201; R. R. Co. v. Mississippi, 102 id. 135, 140; Ames v. Kansas, 111 id. 449, 462; K. P. Co. v. A. T. & S. F. R. R., 112 id. 414, 416; P. Savings Co. v. Ford, 114 id. 635, 641; P. R. Removal Cases, 115 id. 1, 11.

2U. S. v. Ortega, 11 Wheat. 467; Blyew v. U. S., 13 Wall. 581.